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THE EXCHANGE QUESTION. 



Letter of Major-General Butler, United States 

Commissioner of Exchange, to Col. Ould, 

the Confederate Commissioner. 





Headquaeters Depaetment of ~ 

ViEGINIA AND NOETH CAEOLINA, 

In the Field, Aurjast — , 1864. 
Hon. Robeet Ould, 

Commissioner of Exchange. 

SiE: — Your note to Major Miilford, Assistant Agent of 
Exchange, under date of 10th August, has been referred 
to me. 

You therein state that Major Mulford has several times 
proposed " to exchange prisoners respectively held by the 
two belligerents, officer for officer and man for man," and 
that " the offer has also been made by other officials having 
charge of matters connected with the exchange of prisoners," 
and that " this proposal has been heretofore declined by the 
Confederate authorities," That you now "consent to the 
above proposition, and agree to deliver to you (Major Mul- 
ford) the prisoners held in captivity by the Confederate 
authorities, provided you agree to deliver an equal number 
of officers and men. As equal numbers are delivered from 
time to time, they will be declared exchanged. , This pro- 
posal is made with the understanding that the officers and 

(2T5) 




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A 



276 SUPPLEMENT. 



men on both sides who have been longest m captivity ■svill 
be first delivered, where it is practicable.'' 

From a slight ambiguity in your phraseology, but more, 
perhaps, from the antecedent action of your authorities, and 
because of your acceptance of it, I am in doubt whether 
you have stated the proposition with entire accuracy. 

It is true, a proposition was made both by Major Mulford 
and by myself, as Agent of Exchange, to exchange all 
prisoners of war taken b}^ either belligerent party, man for 
man, officer for officer, of equal rank, or their equivalents. 
It was made by me as early as the first of the winter of 
1863-64, and has not been accepted. In May last I for-^ 
warded to you a note, desiring to know whether the Con- 
federate authorities intended to treat colored soldiers of the 
United States army as prisoners of war. To that inquirj^ 
no answer has yet been made. To avoid all possible mis- 
apprehension or mistake hereafter as to your offer now, will 
you now say whether you mean by " prisoners held in cap- 
tivit}'," colored men, duly enrolled, and mustered into the 
service of the United States, who have been captured by 
the Confederate forces ; and if j'our authorities are willing 
to exchange all soldiers so mustered into the United States 
army, whether colored or otherwise, and the officers com- 
manding them, man for man, officer for officer ? 

At the interview which was held between yourself and 
the Agent of Exchange on the part of the United States, at 
Fortress Monroe, in March last, you will do me the favor to 
remember the principal discussion turned upon this very 
point; you, on behalf of the Confederate Government 
claiming the right to hold all negroes, who had heretofore 
been slaves, and not emancipated by their masters, enrolled 
and mustered into the service of the United States, when 
captured by your forces, not as prisoners of war, but upon 
capture to be turned over to their supposed masters or 
claimants, Avhoever they might be, to be held by them as 
slaves. 

By the advertisements in your newspapers, calling upon 



THE EXCHANGE QUESTION". 277 

masters to come forward and claim these men so captured, 
I suppose that your authorities still adhere to that claim — 
that is to say, that whenever a colored soldier of the United 
States is captured by you, upon whom any claim can be 
made by any person residing within the States now in insur- 
rection, such soldier is not to be treated as a i^risoner of war, 
but is to be turned over to his supposed owner or claimant, 
and put at such labor or service as that OA^mer or claimant 
may choose, and the officers in command of such soldiers, 
in the language of a supposed act of the Confederate States, 
are to be turned over to the Governors of States, upon 
requisitions, for the purpose of being punished by the laws 
of such States, for acts done in war in the armies of the 
United States. 

You must be aware that there is still a proclamation by 
Jefferson Davis, claiming to be Chief Executive of the 
Confederate States, declaring in substance that all officers of 
colored troops mustered into the service of the United 
States were not to be treated as prisoners of war, but were 
to be turned over for punishment to the Governors of 
States. 

I am reciting these public acts from memory, and mil be 
pardoned for not giving the exact words, although I believe 
I do not vary the substance and effect. 

These declarations on the part of those whom you repre- 
sent yet remain unrepealed, unannuUed, unrevoked, and 
must, therefore, be still supposed to be authoritative. By 
your acceptance of our proposition, is the Government of 
the United States to understand that these several claims, 
enactments, and proclaimed declarations are to be given up, 
set aside, revokcLl, and held for naught by the Confederate 
authorities, and that you are ready and willing to exchange 
man for man those colored soldiers of the United States, 
duly mustered and enrolled as such, who have heretofore 
been claimed as slaves by the Confederate States, as well as 
white soldiers ? 

If this bo so, and you are so willing to exchange these 



278 SUPPLEMENT. 

colored men claimed as slaves, and you will so officially 
inform the Government of the United States, then, as I am 
instructed, a principal difficulty in effecting exchauges T\'ill 
be removed. 

As I informed you personally, in my judgment, it is 
neither consistent with the policy, dignity, or honor of the 
United States, upon anj' consideration, to allow those Avho, 
by our laws solemnly enacted, are made soldiers of the 
Union, and who have been duly enlisted, enrolled and mus- 
tered as such soldiers, who have borne arms in behalf of this 
country, and who have been captured while fighting in vin- 
dication of the rights of^ that country, not to be treated as 
prisoners of war, and remain unexchanged, and in the 
service of those who claim them as masters ; and I cannot 
believe that the Government of the United States will ever 
be found to consent to so gross a wrong. 

Pardon mc if I misunderstood you in supposing that your 
acceptance of our proposition does not in good faith mean 
to include all the soldiers of the Union, and that you still 
intend, if your acceptance is agreed to, to hold the colored 
soldiers of the Union unexchanged, and at labor or service, 
because I am informed that very lately, almost contempo- 
raneously with this offer on your part to exchange prisoners- 
and which seems to include all prisoners of war, the Con- 
federate authorities have made a declaration that the negroes 
heretofore held to service by owners in the States of Dela- 
ware, Marjdand, and Missouri are to be treated as prisoners 
of war, wlien captured in arms in the service of the United 
States. 

Such declaration that a part of the colored soldiers of the 
United States were to be prisoners of war, would seem most 
strongly to imply that others were not to be so treated, or 
in other words, that the colored men from the insurrec- 
tionary States arc to be held to labor and returned to their 
masters, if captured by the Confederate forces while duly 
enrolled and mustered into, and actually in the armies of the 
United States. 



THE EXCHANGE QUESTION. 279 

In tliG view wliicli tlie Government of tlic United States 
takes of tlie claim made by you to the persons and services 
of these negroes, it is not to be supported upon any prin- 
ciple of national and municipal law. 

Looking upon these men only as property, upon your 
theory of property in them, avc do not see how this claim 
can be made, certainly not how it can be yielded. It is 
believed to be a well-settled rule of public international law, 
and a custom and part of the laws of war, that the capture 
of movable property vests the title to that property in the 
captor, and therefore where one belligerent gets into full 
possession property belonging to the subjects or citizens of 
the other belligerent, the owner of that property is at once 
divested of his title, which rests in the belligerent Govern- 
ment capturing and holding such possession. Upon this 
rule of international law all civilized nations have acted, 
and by it both belligerents have dealt \vith all property, 
save slaves, taken from each other during the present war. 

If the Confederate forces capture a number of horses 
from the United States, the animals immediately are claimed 
to be, and, as we understand it, become the property of the 
Confederate authorities. 

If the United States capture any movable property in the 
rebellion, by our regulations and laws, in conformity with 
international law, and the laws of war, such property is 
turned over to our Government as its property. Therefore, 
if we obtain possession of that species of property known 
to the laws of the insurrectionary States as slaves, why 
should there be any doubt that that property, like any other, 
vests in the United States ? 

If the property in the slave does so vest, then the '-jus 
disjjonendi,^'' the right of disposing of that property, rests in 
the United States. 

Now, the United States have disposed of the property 
which they have acquired by capture in slaves taken by 
them, by giving that right of property to the man himself, 
to the slave, i. e. by emancipating him and declaring him 



280 SUPPLEMENT. 

free forever, so that if we have not mistaken the principles 
of international law and the laws of war we have no slaves 
in the armies of the United States. All are free men, 
being made so in such manner as we have chosen to 
dispose of our property in them which we acquired hy 
capture. 

Slaves being captured by us, and the right of property in 
them thereby vested in us, that right of property has been 
disposed of by us by manumitting them, as has alwa3^s been 
the acknowledged right of the owner to do to his slave. 
The manner in which we dispose of our property while it is 
in our possession certainly cannot be cjuestioned by j'ou. 

Nor is the case altered if the property is not actually 
captured in battle, but comes either voluntarily or involun- 
tarily from the belligerent owner into the possession of the 
other belli2;erent. 

I take it no one would doubt the right of the United 
States to a drove of Confederate mules, or a herd of Con- 
federate cattle, which should wander or rush across the Con- 
federate lines into the lines of the United'States arm}'-. So 
it seems to me, treating the negro as i^roperty merely, if that 
piece of property passes the Confederate lines, and comes 
into the lines of the United States, that property is as much 
lost to its OAvner in the Confederate States as would be the 
mule or ox, the property of the resident of the Confederate 
States, which should fall into our hands. 

If, therefore, the privilege of international law and the 
laws of war used in this discussion are correctly stated, then 
it would seem that the deduction logically flows therefrom, 
in natural sequence, that the Confederate States can have no 
claim upon the negro soldiers captured by them from the 
armies of the United States, because of the former owner- 
ship of them by their citizens or subjects, and only claim 
such as result, under the laws of war, from their captor 
merely. 

Do the Confederate authorities claim the right to reduce 
to a state of slavery free men, prisoners of war captured 



THE EXCHANGE QUESTION. 281 

by them? This claim our fathers fought against undei 
Bainbriclge and Decatur, when set up by the Barbary 
Powers on the northern shore of Africa, about the year 
1800, and in 1864 their children will hardly yield it upon 
their own soil. 

This point I "will not pursue farther, because I understand 
you to repudiate the idea that you will reduce free men to 
slaves because of capture in Avar, and that you base the 
claim of the Confederate authorities to re-enslave our negro 
soldiers, when captured by you, upon the "jus post limini^' 
or that principle of the law of nations which inhabilitates 
the former owner with his property taken by an enemy, 
when such property is recovered by the forces of his own 
country. 

Or in other words, you claim that, by the laws of nations 
and of war, when property of the subjects of one bellige- 
rent power, captured by the forces of the other belligerent, 
is recaptured by the armies of the former owner, then such 
property is to be restored to its prior possessor, as if it had 
never been captured, and, therefore, under this principle 
your authorities propose to restore to their masters the 
slaves which heretofore belonged to them which you niay 
capture from us. 

But this post liminary right under which you claim to 
act, as understood and defined by all writers on national 
law, is applicable simply to immovable ijroperty, and that too, 
only after the complete resubjugation of that portion of the 
country in which the property is situated, upon which this 
right fastens itself. By the laws and customs of war. this 
right has never been applied to movahle property. 

True, it is I believe, that the Romans attempted to apply 
it to the case of slaves, but for two thousand years no other 
nation has attempted to set up this right as ground for 
treating slaves differently from other property. 

But the Eomans even refused to re-enslave men captured 
from opposing belligerents in a civil war, such as ours 
unhappily is. 



282 SUPPLEMEXT. 

Consistently then Avitli any principle of the law of nations, 
treating slaves as property merely, it would seem to be im- 
Ijtossihle for the Government of the United States to permit 
the negroes in their ranks to be re-enslaved when captured, 
or treated otherwise than as prisoners of war. 

I have forborne, sir, in this discussion, to argue the ques- 
tion upon any other or different grounds of right than those 
adopted by your authorities in claiming the negro as pro- 
perty, because I understand that your fabric of opposition 
to tlie Government of the United States has the right of 
property in man as its corner-stone. Of course it would 
not be profitable in settling a question of exchange of 
prisoners of war to attempt to argue the question of abandon- 
ment of the very corner-stone of their attempted political 
edifice. Therefore I have admitted all the considerations 
which should apply to the negro soldier as a man, and dealt 
with him upon the Confederate theory of property only. 

I unite with you most cordially, sir, in desiring a speedy 
settlement of all these questions, in view of the great suffer- 
ing endured by our prisoners in the hands of your authori- 
ties, of which you so feelingly speak. Let me ask, in view 
of that suffering, why you have delayed eight months to 
answer a proposition which by now accepting you admit to 
be right, just, and humane, allowing that suficring to cou- 
tintie so long ? One cannot help thinking, even at the risk 
of being deemed uncharitable, that the benevolent sympa- 
thies of the Confederate authorities have been lately stirred 
by the depleted condition of their armies, and a desire to 
get into the field, to affect the present campaign, the hale, 
hearty, and well-fed prisoners held by the United States in 
exchange for the half-starved, sick, emaciated, and unser- 
viceable soldiers of the United States now languishing in 
your prisons. The events of this war, if we did not know 
it before, have taught us that it is not the Northern portion 
of the American people alone who know ho.w to drive sharp 
bargains. 

The ^^Tongs, indignities, and privations suffered by our 



THE EXCHANGE QUESTION. 283 

soldiers would move me to consent to anything to procure 
tlieir exchange, except to barter away the honor and faith 
of the Government of the United States, which has been so 
solemnly pledged to the colored soldiers in its ranks. 

Consistently with national faith and justice we cannot 
relinquish this position. With your authorities it is a ques- 
tion of property merely. It seems to address itself to you 
in this form. Will you suffer your soldier, captured in 
fighting 3^our battles, to be in confinement for months rather 
than release him by giving for him tliat which you call a 
piece of property, and which we are willing to accept as a 
man? 

You certainly appear to place less value upon your 
soldier than you do upon your negro. I assure you, much 
as we of the North are accused of loving property, our 
citizens would have no difficulty in yielding up any piece 
of property they have in exchange for one of their brothers 
or sons languishing in your prisons. Certainly there could 
be no doubt that they would do so were that piece of pro- 
perty less in value than five thousand dollars in Confederate 
money, which is believed to be the price of an able-bodied 
negro in the insurrectionary States. 

Trusting that I may receive such a reply to the questions 
propounded in this note, as will tend to a speedy resumption 
of the negotiations in a full exchange of all prisoners, and 
a delivery of them to 'their respective authorities. 

I have the honor to be, • 

Very Eespectfully, 

Your Obedient Servant, 

BENJAMIN F. BUTLER, 

Major-General and Commissioner of Exchange 



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